Elliff et al v. Mesa, City of

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ashley Elliff, et al.,
Plaintiffs,
v.
City of Mesa, et al.,
Defendant.
No. CV-25-01146-PHX-JJT
ORDER
At issue is Defendant City of Mesa’s Motion for Partial Dismissal of Plaintiffs’
Complaint (Doc. 12, Mot.), to which Plaintiffs Ashley Elliff, Elisha Gibbs, Brandon
Hamilton, Cindy Martinez, Amanda Rainey, and Christen Rope filed a Response (Doc. 18,
Resp.), and the City of Mesa filed a Reply (Doc. 19, Reply). Based on the parties’ briefing,
the Court finds it appropriate to resolve the Motion without oral argument. LRCiv 7.2(f).
For the reasons set forth below, the Court will grant the City’s partial motion to dismiss
and transfer the remainder of this case to District Judge Sharad H. Desai.
I. BACKGROUND
In the Complaint (Doc. 1, Compl.), Plaintiffs allege the following. “The claims in
this matter arise out of the City of Mesa’s Police Sergeant Jeffrey Neese’s habitual sexual
harassment of six female police officers and the spouse of a City of Mesa police officer,
the City’s handling of those claims, and the continuing hostile work environment.” (Compl.
¶ 6.) Specifically, Neese created a nude drawing of Gibbs, Rope, and non-party Elsie Keim
and sent it to them. (Compl. ¶ 7.) He also sent sexually-charged text messages to Elliff,
Case 2:25-cv-01146-SHD Document 20 Filed 11/20/25 Page 1 of 7

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Gibbs, Martinez, Rainey, Rope, the wife of Hamilton, and non-party Keim. (Compl. ¶¶ 9–
21, 36–54, 63–74.) Upon receiving complaints from some of these individuals, the City’s
Human Resources department (“HR”) investigated and, although HR found Neese had sent
unwelcome and offensive text messages and engaged in sexual misconduct, as disciplinary
action HR decided to move him from SWAT to the role of patrol sergeant alongside the
targets of his misconduct. (Compl. ¶¶ 30–35, 55–56, 75–77.) Plaintiffs claim this was
emblematic of “[t]he City’s longstanding[] custom and policy of allowing sexual
harassment in the workplace and creating a hostile work environment for its employees,”
which was “systemic and not limited to the acts and omissions of Neese.” (Compl. ¶ 78.)
Neese retired in December 2019. (Compl. ¶ 104.)
Independently, Keim brought suit against the City on May 21, 2024, raising claims
under 42 U.S.C. § 1983 for violation of her constitutional equal protection rights and a
claim under the Arizona Civil Rights Act. (Case No. CV-24-01182-PHX-SHD, Doc. 1.)
Plaintiffs in the instant lawsuit filed their Complaint almost a year later, on April 6, 2025,
after receiving Notice of Right to Sue letters from the Equal Employment Opportunity
Commission (EEOC). (Compl. ¶ 5.) In this case, Plaintiffs raise claims under Title VII for
unlawful employment discrimination and a hostile work environment and a claim under
§ 1983 for violation of equal protections rights under the Constitution. (Compl. ¶¶ 97–122.)
In Keim v. City of Mesa, Judge Desai entered an Order on August 25, 2025, granting
the City’s motion to dismiss Keim’s § 1983 claims because they rely on the City’s response
to Neese’s conduct before Neese retired in December 2019, and the claims are therefore
time barred. (Case No. CV-24-01182-PHX-SHD, Doc. 18.)1 Judge Desai granted Keim
leave to amend the § 1983 hostile work environment claim if she could make non-
conclusory factual allegations of conduct on the part of the City that occurred within the
statute of limitations period. (Id.) On October 7, 2025, Keim filed her Second Amended
Complaint, which mirrors the Complaint brought by the six Plaintiffs in the instant lawsuit,
containing the same claims against the City. (Id. Doc. 26.)
1 Judge Desai also dismissed Keim’s Arizona Civil Rights Act claim based on the
stipulation of the parties.
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In the instant lawsuit, the City filed a partial motion to dismiss on August 11, 2025,
arguing—as it did in Keim v. City of Mesa—that Plaintiffs’ § 1983 claim is time barred
because it relies on the City’s 2018–19 response to Neese’s conduct. The City also makes
the new argument that the Court must dismiss the Title VII claims brought by Hamilton
because Neese’s conduct toward Hamilton’s wife—a non-employee—is not actionable
under Title VII. (Mot. at 1–2.) The Court now resolves the City’s partial motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6).
II. LEGAL STANDARD
Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to
state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the
absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for
failure to state a claim, the well-pled factual allegations are taken as true and construed in
the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067
(9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
“While a complaint attacked by a Rule 12(b)(6) motion does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned up and citations omitted).
Legal conclusions couched as factual allegations are not entitled to the assumption of truth
and therefore are insufficient to defeat a motion to dismiss for failure to state a claim. Iqbal,
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556 U.S. at 679–80. However, “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote
and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).
III. ANALYSIS
A. The City’s Partial Motion to Dismiss
As the City argued in Keim v. City of Mesa, it argues here that the Court should
dismiss Plaintiffs’ § 1983 claim, because, to the extent the claim relies on the City’s
response to Neese’s conduct, it is time barred, and the Complaint contains no non-
conclusory allegations of conduct on the part of the City within the statute of limitations
period. (Mot. at 3–4.) Judge Desai addressed this question with respect to Keim’s § 1983
claims in granting the City’s motion to dismiss in that case, and Judge Desai’s analysis
applies with equal force to the allegations in the instant case.2 (See Case No. CV-24-01182-
PHX-SHD, Doc. 18.) The Court will therefore grant the City’s motion for dismissal of
Plaintiffs’ § 1983 claim in this case as well. Plaintiffs may amend the Complaint if they
can allege non-conclusory facts regarding the City’s conduct—not simply allegations of
Plaintiffs’ lingering injury from the time-barred conduct—within the statute of limitations
period. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
The City also argues that the Court should dismiss Hamilton’s Title VII claims
because they are predicated on text messages Neese sent to Hamilton’s wife, who was not
an employee of the City of Mesa, and Hamilton makes no allegations that, based on his
sex, he was discriminated against or suffered a hostile work environment. (Mot. at 4–5.)
The Court agrees.
. . .
2 Counsel for Plaintiffs and the City of Mesa in this matter also represent Keim and the
City in Keim v. City of Mesa, Case No. CV-24-01182-PHX-SHD. Although Plaintiffs filed
their response (Doc. 18, dated Sep. 23, 2025) to the City’s motion to dismiss in this matter
after Judge Desai entered the Order (Case No. CV-24-01182-PHX-SHD, Doc. 18, dated
Aug. 25, 2025) granting the City’s motion to dismiss on the same basis in Keim v. City of
Mesa, Plaintiffs in their response make no mention of Judge Desai’s ruling finding a lack
of merit to the identical arguments Keim made in the case before Judge Desai.
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Title VII prohibits employers covered by the Act from discriminating against an
individual based on the individual’s race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e-2(a). No allegations in the Complaint lead to the plausible inference that Hamilton
suffered discriminatory acts or a hostile work environment based on his sex. And Neese’s
conduct toward Hamilton’s wife, which plausibly constitutes conduct based on her sex, is
not actionable under Title VII even if the City knew about the conduct and took no action,
because Hamilton’s wife was not an employee of the City.3 In their Response, Plaintiffs
argue that Hamilton has Title VII claims against the City because his supervisors and co-
workers treated him differently after he reacted to Neese’s text messages to his non-
employee wife. (Resp. at 5.) But, as Title VII itself sets forth, an individual must suffer
discriminatory acts by his employer on account of his own sex for his discrimination or
hostile work environment claims to be actionable under that statutory framework. See
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“Title VII does not
prohibit all verbal or physical harassment in the workplace; it is directed only at
‘discriminat[ion] . . . because of . . . sex.’”)
Accordingly, the Court will dismiss Hamilton’s claims against the City. Because the
Court finds that Hamilton cannot cure the defects in his Title VII or § 1983 claims by
amending the Complaint, the Court dismisses them with prejudice. See Lopez, 203 F.3d at
1130.
B. Case Transfer
Federal Rule of Civil Procedure 42(a) provides, “If actions before the court involve
a common question of law or fact, the court may: (1) join for hearing or trial any or all
matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to
avoid unnecessary cost or delay.” Relatedly, Local Rule 42.1(e) provides that the Court
may order the transfer of a case such that cases pending before different Judges may be
3 In support of their arguments, both Plaintiffs and the City cite Thompson v. N.A. Stainless,
L.P., 562 U.S. 170, 178 (2011), which is inapposite. There, both the plaintiff and his
fiancée—who filed a sex discrimination case against their employer—were employees of
the company and fell under the “zone of interests” of Title VII, and in any event the plaintiff
there brought a claim of retaliation for being fired, not of discrimination or a hostile work
environment, as Hamilton does here.
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heard by a single Judge “[i]f the transferee Judge previously adjudicated a case that: (A)
arose from substantially the same transaction or event; (B) involved substantially the same
parties or property; . . . or (D) called for the determination of substantially the same
questions of law;” or if “substantial duplication of labor” would arise if the case was heard
by the transferor Judge; or “[f]or reasons of judicial economy and the availability of judicial
resources.” LRCiv 42.1(e).
The Complaint (Doc. 1) in the present case brings the same claims based on
substantially the same allegations against the same Defendant as the Second Amended
Complaint Keim filed in an earlier case in this District, Case No. CV-24-01182-PHX-SHD,
Doc. 26, and the two cases are in approximately the same posture. Under Local Rule
42.1(e), in the interest of judicial economy, the Court finds that transfer of this case to
Judge Desai is appropriate for determination of the same questions of law arising from the
same alleged events involving the same parties. Transfer will eliminate the duplication of
labor that would automatically arise where two different judges are asked to resolve
identical issues, and Judge Desai has consented to the transfer.
IT IS THEREFORE ORDERED granting Defendant City of Mesa’s Motion for
Partial Dismissal of Plaintiffs’ Complaint (Doc. 12). Plaintiff Brandon Hamilton’s claims
are dismissed with prejudice, and the remaining Plaintiffs’ § 1983 claim is dismissed as
time barred. The remaining Plaintiffs may file an Amended Complaint within 14 days of
the date of this Order, but only if they can cure the defects in their § 1983 claim as identified
in this Order. Consistent with LRCiv 15.1, the remaining Plaintiffs shall file, concurrently
with any Amended Complaint, a notice of filing the amended pleading that attaches a copy
of the amended pleading indicating in what ways it differs from the Complaint.
IT IS FURTHER ORDERED that the Clerk of Court shall transfer this case to
District Judge Sharad H. Desai for all further proceedings.
IT IS FURTHER ORDERED that, unless otherwise directed by the Court, future
pleadings and papers the parties file with the Court in this case shall bear the case number,
CV-25-01146-PHX-SHD.
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IT IS FURTHER ORDERED that the Clerk of Court shall provide a copy of this
Order to Chief Judge Jennifer G. Zipps pursuant to LRCiv 42.1(e).
Dated this 19th day of November, 2025.
Honorable John J. Tuchi
United States District Judge
Case 2:25-cv-01146-SHD Document 20 Filed 11/20/25 Page 7 of 7